Impeachment Eligible

22 Jun

Obama’s illegal war continues.

I choose each of those four words for specific reasons. With a public distracted during the start of bomb dropping, a delay in ever explaining his reasoning and actions, no attempt to get a buy-in from the American public, and no vote sought in Congress, this sorry episode has nowhere to land but on President Obama’s shoulders. The action is illegal because any pretense of abiding by the War Powers Act passed after a 60/90 day deadline on June 19th. The action in question is most certainly a war, but it should embarrass the President that I must make that point explicitly, as his lawyers twist Orwellian. And finally, this war continues, endures, with only a glimmer of opposition now taking hold.

Always politically astute, President Obama cynically knows that the American people generally only care about wars when our soldiers are dying. That is not happening directly in Libya (this article is about Libya, remember we’re now fighting there too?), so the conflict slid under the national radar almost as soon as it began. Our soldiers may be indirectly dying because of Libya, but that is a nuanced argument that is difficult to sell. While our DOD budget is huge, the tools President Obama is using in Libya – attack helicopters, Predators, Reapers, AWACS, AC-130’s, spy satellites, etc – are exactly to ones in short supply within the US military. He didn’t support the Libyan opposition by sending 100,000 old M-16s sitting in a warehouse (that we know of, anyway). He dedicated units known within the military as “High Demand/Low Density.” Every AC-130 and Predator in Libya is not available to support our war in Afghanistan. How many soldiers there have died waiting for attack helicopter support? We won’t and can’t know. But President Obama’s eye certainly appears to be off that ball.

I can better accept the difficult choice of the allocation of resources under different political and legal conditions, but our involvement in Libya was rotten from the start, and has gotten worse. That glimmer of opposition I mentioned earlier has come from sources expected and not. George Will, who found his anti-intervention religion on January 20th, 2009, dislikes our involvement because we are using NATO and the UN as window dressing, allowing them to maintain legitimacy while we do what we want. Mayors from across the country object to our continued involvement in Iraq and Afghanistan because we’re spending money overseas instead of reinvesting at home. While they don’t specifically mention Libya, the argument certainly applies there as well. Glenn Greenwald (Salon) and Garrett Epps (The Atlantic) object to the over-reach of Executive Power. Ron Paul and Dennis Kucinich (author’s note: I dislike using this source link, but its what I’ve got) warned before the start of the action that failure to consult Congress is an impeachable offense, and have now filed a doomed lawsuit. Greenwald himself walks up to this “impeachment” line, calling the war “illegal” repeatedly, but never quite crosses it. Should he, and we?

Candidate Obama, constitutional scholar, declared a President should not engage in military action sans Congressional approval unless the country itself was threatened. President Obama broke the spirit of the War Powers Act the first day of bombing, but only the letter of the law last Sunday. If the process by which we ended up attacking Libya broke the law, and it was the President that took those actions, then he committed an impeachable offense. I would argue that he committed the first truly impeachable offense by a President since Richard Nixon ordered a rash of theft and breaking and entering. Worse, President Obama committed the offense involving the most solemn of Presidential duties: sending forces to combat.

First, let’s rule out some other dubious Presidential behavior. President Reagan’s Iran/Contra scandal never quite made it all the way to his desk. President Clinton’s circus was engineered; a grand jury testimonial whose sole purpose was to create a lie under oath about a fundamentally political and personal matter. Obama’s current Libya policy is often compared to Bush’s: Greenwald referencing his wire-tapping plan, Epps his torture fiasco. While there are apt comparisons to be made between their legal teams (both sought narrow legal definitions to exonerate their boss), I think the nature of Presidential action is important. The NSA eavesdropping and warrantless wiretapping evolved from new Patriot Act regulations following 9/11. That an administration wrestled with what was legal and what was not following the implementation of a new law is understandable. Likewise, while torture is illegal under the US code, it is facetious to act as if there has not been a two hundred year debate in our country over what constitutes “torture,” “cruel and unusual” punishments, etc. The standard has rightly evolved, but it is a regular matter of discussion, and the Executive Order authorized interrogation techniques we used (that we know of) consisted of procedures routinely used on our own US military trainees, techniques that sat in a grey area long before Bush authorized the CIA to get creative.

No such grey area exists on the question of whether dropping bombs on someone’s head is a war or not, no matter the protestations coming from President Obama’s legal counsel. The Obama Administration’s lawyerly squirms must make even John Yoo blush. Equally important, in my opinion, are the atmospheric circumstances surrounding this flouting of the law. The War Powers Act is a direct check on Presidential power – it restricts and defines an explicit Constitutional power, the most basic action of an any sovereign country: committing the military to war. That Congress asserted this authority by overriding a veto provides additional moral (though not legal) weight and consideration. It is also a law only one citizen in this country can break. Any of us could lie to a grand jury, and any police officer could wiretap illegally. But this law is designed for the President alone. Unlike ordering someone else to commit an illegal act, there is no degree of separation, no ambiguity in orders or directives, no wiggle room. The President has committed US forces to war past the firm, unequivocal numerical deadline. He is the solitary doer of an illegal deed.

Do not confuse bold leadership with illegal action. The UN confers political and geo-legal cover, not wisdom, nor diplomatic immunity to US law. No matter the supposed rightness of the cause, the Libyan War has passed from Executive Branch over-reach to illegality. Will Congress reassert and resume its role? Despite Boehner’s polite rebuttal, the political expediency is obvious: the only thing safer than voting “yes” on military action is not being forced to vote at all.

24 Responses to “Impeachment Eligible”

  1. Tom Dolina June 22, 2011 at 8:00 am #

    President Obama’s error in this was the simple fact that he could have easily been able to make his case to Congress and may very well have won support from them (using his “I Killed Bin Laden street cred) , overcoming the knee-jerk automatic naysaying of partisan politicians who would agruge the sky is purple when the other side states it’s blue. When you have people like Liz Cheney, Bill Kristol, Elliot Abrams and Karl Rove signing on to have the U.S. do MORE in Libya to remove Gaddafi then we truly have a “coalition of the strange bedfellows”. Of course, the American people want none of it, and in this case, Obama has found a way to make everybody dissatified in the process. Cheers to you, Brian, on such a well laid out piece…

  2. Alan Bedenko June 22, 2011 at 8:56 am #

    If the Security Council declares a threat to peace under Article VII of the Charter and directs member states to act, and the United States – having ratified the UN Charter in 1945, thus having treaty obligations to the UN and making the UN Charter the law of the land, it might be political cover, but it also is the legal equivalent to a federal statute, like the War Powers Act. 

  3. Brian Castner June 22, 2011 at 9:23 am #

    @ Alan – I am no UN/sovereignty scholar, but it would seem that complying with one law (the UN, if it does truly extend so far) does not free the President from complying with another.

  4. Jesse June 22, 2011 at 9:35 am #

    @Alan: Has the Security Council done that?  I find it hard to imagine that Russia wouldn’t veto such a thing.

    There’s no doubt about a few things here:

    1. This is a war.  Obama’s legal team prevarications make a mockery of the very idea of “law”.  That’s shameful.

    2. He’s accumulating executive power just like Bush did before him.

    3. His insignificant draw down in Afghanistan is a joke (ooo 10k coming ‘home’, wowie!), but the news conference just happens to work really well as a redirect for the Libya story.

    4. There’s no way Congress would have the balls to bring up impeachment charges in this case.  Congress has abdicating so much of its responsibility it’s almost useless.

  5. Colin June 22, 2011 at 9:35 am #

    I’m with Brian.

    It’s also worth noting that our war in Libya goes far beyond the original terms of the UN resolution, though I’m sure that Obama has an entire team of lawyers and postmodern deconstructive literary critics on staff to argue that its language actually means whatever they want it to.

  6. Mr. F.N. Magoo June 22, 2011 at 10:46 am #

    There’s no way Congress would sue for impeachment on the basis of a President violating the War Powers Act. The Act itself is questionably constitutional on at least two points and the process of bringing an indictment would cripple Congress even further with very little chance of it being passed on to the Senate for prosecution. So long as President Obama has wiggle room and disengages sooner rather than later (part of Gates’ dead-on criticism of NATO is to give Obama cover to end or lessen US participation), this will all blow over.

    Attacking Libya’s armed forces in support of a rebellion isn’t the mission of the US Armed Forces nor does it qualify as a NATO mission, in the spirit of the agreement. We’re there because European countries who see this as their humanitarian responsibility don’t have the stones nor capability to go it by themselves. We have little justification to claim it as a humanitarian mission in the face of inaction in Sudan, Rwanda and all the other horror stories we choose to ignore . Just because, this time, ‘the enemy’ actually has assets that are easily targeted shouldn’t factor into our decisions to help the Europeans save face. Instead of a pointless, partisan attempt to damage a Democratic President, a discussion of our role in NATO might be more to the point.

  7. Mr. F.N. Magoo June 22, 2011 at 10:50 am #

    Sorry. should’ve said “another of Brian’s partisan attempts’. Obviously Kucinich and some of the commenters aren’t using it as such. My bad.

  8. Brian Castner June 22, 2011 at 11:06 am #

    @ Magoo – If you want my analysis of NATO and us being involved at all – read what I wrote three months ago. There are multiple facets to this story – here I chose to write about a different one, and I think illegal actions by a President are certainly germane. I have no idea why you consider my critique partisan, or even an attempt to damage the President. I used no partisan rhetoric or language, and presented a variety of critiques from across the political spectrum. You are bringing that to the discussion yourself. As to your first paragraph analysis – the questionable constitutionality of the WPA is irrelevant to whether he is breaking the law. Last I checked, the Supreme Court, not a lazy Congress, determine constitutionality. It probably will all blow over, but that doesn’t mean it should. The precendent being set is outrageous.

  9. Mr. F.N. Magoo June 22, 2011 at 11:23 am #

    Obama isn’t setting a precedent. He is leaning on past decisions and/or inaction. Though the Supreme Court hasn’t directly ruled on The War Powers Act, in INS v. Chadha, they “cast doubt on the validity of any legislative veto device that was not presented to the President for signature.” Under the Presentment Clause of the Constitution, Congress is required to take affirmative votes, not to set up some automatic mechanism in lieu of actually voting The reason that the Supreme Court hasn’t directly ruled on the constitutionality of the Act is because no President has been forced to take it that far and Congress doesn’t dare. The question of the constitutionality is entirely relevant because it affords Presidents all sorts of wiggle room to defy the Act and because it takes all the teeth out of any impotent calls for impeachment.

  10. Ethan June 22, 2011 at 11:47 am #

    While I agree with you and Glenn Greenwald about the illegality of Obama’s actions in Libya, I do think it is disingenuous of you to make it out as *worse* than the Bush Administration’s actions in Iraq or regarding domestic wiretapping.  

    • Alan Bedenko June 22, 2011 at 11:57 am #

      By the way, nothing Obama has done (or refrained from doing) amounts to an impeachable high crime or misdemeanor. Just so we’re clear.

  11. Brian Castner June 22, 2011 at 12:53 pm #

    @ Magoo: Just to clarify, I didn’t call for his impeachment. I said he committed an impeachable offense. If I call on anything, it is for Congress to do their job: either defund the war, or authorize, but don’t leave it in cowardly limbo.

    @ Ethan: Its only “worse” in so far as it is a direct breakage of the law. Issuing an executive order that is interpretted by an agency that is laid down in policy that is implemented by someone pouring the water up the nose of the bound victim is bad. Breaking the law personally by failing to follow a specific legal mandate on your office is directly “worse” in my opinion. I know both are murder, but in this case, Obama didn’t just order the hit, he pulled the trigger himself. I’m sure Alan can provide the legal term for distinction. Speaking of which . . .

    @ Alan – Care to explain?

    • Alan Bedenko June 22, 2011 at 1:07 pm #

      If the President believes in good faith that he has the authority to undertake this action in Libya pursuant to Article VII of the UN Charter, the NATO treaty, and other bilateral or multilateral treaties, all of which are the supreme law of the land, and he believes in good conscience that such undertaking does not require action through the War Powers Act, then he has not committed a crime. Furthermore, I’m not aware that non-compliance with the War Powers Act is a crime at all. So, there’s that. Just because you violate a statute like the War Powers Act doesn’t mean you’ve committed a crime.

  12. Brian Castner June 22, 2011 at 1:21 pm #

    I’ve never heard the argument that if you “believe in good conscience” you haven’t broken the law then you haven’t. Convenient. Your second point seems more relevant – if the WPA had no penalty, then why have the statute? Or is impeachment implied? If our system worked, Congress would call him on this and it would go to the Supreme Court. I won’t hold my breath.

    • Alan Bedenko June 22, 2011 at 1:29 pm #

      To accuse someone of a crime you need:

      1. A statute designating something as a crime;
      2. Mens rea (guilty conscience, or guilty intent); and
      3. Actus reus (commission of the act itself).

      Here, I’m not so sure you have any one of those three elements present, so you can’t impeach Obama because he hasn’t committed a high crime or misdemeanor, nor can he even be accused of same.

  13. Brian Castner June 22, 2011 at 1:53 pm #

    Be sure to tell Greenwald to let Bush and Obama off the hook then – there is not a guilty conscience around.

    • Alan Bedenko June 22, 2011 at 2:08 pm #

      People throw out the word “crime” pretty loosely. It’s not about “conscience” as in feeling badly. It’s about having the requisite criminal intent. I’d argue that there were people in the Bush Administration who had that criminal intent to go to war in Iraq without legal justification (i.e., based on false intelligence), but I don’t know whether Bush himself had that knowledge or intent.

  14. Brian Wood June 22, 2011 at 3:21 pm #

    The administrations of both Bush and Obama need to appear at Den Haag, and, if possible, at Nuremberg to hang next their spiritual forebears. Killin’ littler, browner foreign trash: go U.S.A!

  15. Ethan June 22, 2011 at 5:05 pm #

    “Issuing an executive order that is interpreted by an agency that is laid down in policy that is implemented by someone pouring the water up the nose of the bound victim is bad.”

    So indirect breaking of laws < direct breaking of laws?  Meh. What Mr. Wood said.  

  16. Brian Castner June 22, 2011 at 5:24 pm #

    @ Ethan – Yes, please feel free to ignore the rest of the argument I laid out, including the initial bit up in the main body. But its all moot anyway – Bush was so foot-loose, fancy free and sure of his own cause, per Alan, he was crime free to the nines.

    • Alan Bedenko June 22, 2011 at 6:20 pm #

      Let’s don’t forget executive immunity

  17. Mike June 24, 2011 at 8:06 am #

    Alan sure is squirming trying to defend his hero’s actions. If the UN Charter is the Supreme Law of the Land, then why do we even vote on or have a President at all? We should be voting for the UN Security Council.

  18. Ethan June 24, 2011 at 10:14 am #

    not ignore; disagree with.

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